Hall, Tomasulo and Mariano. The opinion of the court was delivered by Tomasulo, J.s.c. (temporarily assigned).
The plaintiffs-respondents purchased a parcel of real estate from the defendant-appellant at auction pursuant to R.S. 40:60-26, having bid $3,000 therefore. Thereafter, plaintiff refused to accept the title to the property on the basis that it was unmarketable and instituted a suit for the return of the deposit of $150 plus reasonable costs of the title examination, the township having refused to return the deposit. The following facts were established:
On April 4, 1853 the then owner of the property conveyed the same to one Michael Pastacaldi, the deed being recorded on November 12, 1853. On October 18, 1923 Edward Hornung, having acquired a tax lien affecting the subject property, instituted strict foreclosure proceedings in the Court of Chancery upon the conclusion of which he became the owner of the property. On June 27, 1925 Edward Hornung
died, leaving a last will and testament duly proven on July 8, 1925 in which he left his real estate to his wife, Theresa Hornung. On April 14, 1928 the Township of North Bergen filed a lis pendens in connection with condemnation proceedings instituted by it in accordance with the provisions of the Condemnation Act of 1900 (2 C.S. 2182, etc.). On May 9, 1928 an order appointing commissioners was filed in the Clerk's Office of Hudson County (Docket 139186). The order called upon the commissioners to file their report in the clerk's office on or before July 16, 1928. Accordingly, the commissioners prepared a report dated July 12, 1928 in which they made an award of $11,000 for the condemned property. This report was never filed with the county clerk as provided for by the statute, supra. On August 6, 1928, however, the Township of North Bergen filed a petition in Chancery to pay the amount of the condemnation award to the clerk of that court in accordance with the provisions of section 8 of the act (Chancery Docket 69-372). Thereafter, an order of the Court of Chancery was entered granting leave to the Township of North Bergen to pay the sum of $11,000 into court and providing for the giving of notice thereof to all the interested parties. The petition so filed by the Township of North Bergen had annexed thereto the report of the commissioners dated July 12, 1928 which (inter alia) set forth the following:
"We do find and report that the value of the land described as aforesaid and thus to be taken for public use in this matter as of the date of the filing of the petition and order herein is the sum of $11,000; that no damages accrued to the owners, occupants and persons interested in said land by reason of such taking, over and above the value of the lands thus to be taken, so that the amount to be paid by the petitioner for such land and damage aforesaid as of the date of the filing of the petition and order herein, is the sum of $11,000.
All of which is respectfully submitted the 12th day of July, A.D., 1928.
In the Chancery proceeding so taken by the Township of North Bergen, Theresa Hornung filed a petition in which she set forth: (1) that she was the owner of the premises by virtue of the proceedings in strict foreclosure brought by her deceased husband against Michael Pastacaldi, et al; (2) that on the 5th day of May, 1928, commissioners were appointed by the Honorable James F. Minturn, one of the justices of the Supreme Court of the State of New Jersey, and thereafter a hearing was held before said commissioners and as a result thereof, on the 12th day of July, 1928, the ...